Assembly member wants streams ordinance repealed

A Kenai Peninsula Borough Assembly member hopes to wipe from the books a previously approved, but half-implemented expansion of the borough’s anadromous waters habitat protection ordinance.

Newly-elected assembly member Kelly Wolf has filed an ordinance aimed at deleting language that added all anadromous waterbodies on the Peninsula to the habitat protection district that previously included only 25 of the Peninsula’s major streams and tributaries. Wolf’s measure — Ordinance 2013-03 — would roll back borough code to protect just those previously listed 25 waterbodies and would also call for an administrative review and assessment of the benefits of enforcing and regulating the entire anadromous streams habitat protection code.

The ordinance is up for introduction at the assembly’s 7 p.m. Tuesday meeting. The assembly meets at the George A. Navarre building at 144 N. Binkley Street in Soldotna.

If introduced, the ordinance would be up for a public hearing on Feb. 5.

The anadromous streams habitat protection expansion measure — Ordinance 2011-12 — passed in late June 2011 added 2,317 stream miles to the 602 stream miles previously included in the district.

The ordinance protects the near-stream habitat of all anadromous streams and lakes — which host fish migrating from the sea to spawn in fresh water — in the borough 50 feet up the bank.

The idea is by protecting the habitat, the safety and future of the fish — primarily salmon — are better secured, advocates of the measure contend. Opponents contend the measure is onerous, isn’t within the borough’s powers and infringes on private property rights.

Borough code includes a prior use rule, creates tax incentives for improvement and compliance and creates a permitting system for property owners to receive approval for projects on their property in the protection district.

The code hasn’t yet been implemented on the east side of the borough, but notice of the ordinance’s rules and regulations was mailed to some residents. In June 2012, the borough denied a group’s petition to scratch the measure from the books.

Continued public criticism lead Kenai Peninsula Borough Mayor Mike Navarre to organize a task force to examine the measure and how it applied to anadromous lakes. The task force has met for several months and is beginning to consider specific changes to recommend to the assembly.

“How can you take a bad apple and make it good?” Wolf said when asked if he had considered the task force or its work when drafting the ordinance.

“I dispute that it is a bad apple,” said assemblyman and task force member Bill Smith, the prime sponsor of Ordinance 2011-12. “How do you take a good apple and pretend it is bad? Make the case. He hasn’t made the case that it is bad.”

Wolf, in his ordinance, wrote that the assembly passed Ordinance 2011-12 without having documentation of the existing code’s benefits, financial reports indicating the costs associated with the current code, or projections of future expenditures caused by the expansion ordinance. He said he was alarmed to learn there was no fiscal note attached with the measure.

In his proposed ordinance, Wolf states that since the approval of Ordinance 2011-12 there have been several events that suggest the Kenai River watershed has not benefitted from additional protection regulations.

Wolf lists the summer Kenai River king salmon run being declared a disaster, the Kenai River being listed an impaired water body in 2006 — which was due to excessive hydrocarbon levels during July — and the Kenai River being again considered for listing as an impaired water because of turbidity. He also cites the growth of in-river use “without limits” since the mid 1990s and claims the personal-use dipnet fishery has grown to become “an environmental health hazard resulting in impaired water quality.”

In a phone interview, Kenai Watershed Forum executive director Robert Ruffner challenged Wolf’s points and how they relate to the habitat protection code.

“So all five of those issues are various things people have concerns over, but none of them have anything whatsoever to do with protecting the river bank,” he said.

In a memo submitted with the ordinance, Wolf questioned how and why provisions that originally required a review every two years of the code’s “benefits and effectiveness” were changed.

Currently, borough code requires the planning department provide an annual permit and activity report to the planning commission regarding the habitat code. A staff review is to be presented to the commission and assembly every five years starting in 2015.

Wolf wrote the habitat protection code has not been reviewed since 1997 and claimed the “previous administration was unduly influenced” by the Kenai Watershed Forum and the Alaska Clean Water Actions group to rework how the borough reviewed the code years ago.

He cited the timing of a 2008 legal review of the code’s effectiveness by an outside lawyer submitted to the Watershed Forum in 2009 and the introduction of another ordinance in February of 2010 that amended the two-year review requirement.

“This appears to have a nonprofit influencing legislation,” he wrote in the memo.

Wolf said he has not talked to the watershed forum about the issue, could not prove specifics about how the two actions were directly correlated, but said he feels the watershed forum “stepped over the line.”

“Because there is such a public outcry over the introduction and expansion — overreach if you want to call it that — of 2011-12 I’m just recommending that because of the integrity and question of ethics and transparency, toss the whole thing out and start all over,” he said.

Ruffner said all Wolf’s allegations are “completely unfounded” and some are “pretty outlandish.” Ruffner cited a “history” between Wolf and the watershed forum in defense of his organization, but did not elaborate.

“I think it is unfortunate that someone who gets elected to public office would use that as a bully pulpit and that is exactly what I think is happening here,” he said.

Smith said Wolf’s proposal was “premature,” and he doubted it would gain traction with assembly members.

“I think there is pretty strong support for 21.18 and I think there is pretty strong support for (ordinance) 2011-12, although maybe not as strong,” he said. “I think that with the work of the task force, the assembly is looking forward to looking at the results of what the task force comes up with and the public hearings that result from that.”

Navarre agreed and said the ordinance was premature — the task force’s work should be considered before an outright repeal.

“I specifically asked and invited a number of people to participate in a task force that has spent a lot of time, energy and effort up to this point, including a lot of public participation, and I think it would be irresponsible to ignore that at this point,” he said. “I don’t expect the assembly to pass it.”

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If waterfront property owners stopped using fertilizers and clear cutting to the waters edge, and protected the banks from people trompling on them, no problem. All these that I mentioned is what protects fry. I swear there are people who worship a perfect green lawn, no trees or vegetation except grass next to the water. It kills and contaminates, your yard is not more valuable than fish. Clear cutting allows run-off, nothing to hold the banks up, fish have to have overhang to be protected and grow. If you guys could do something as simple as that, then no problem. the mental attitude some have is, I moved to Alaska and I can do what ever I want, its the land of the free. If you would do these things there wouldnt be a problem. Drive around town and look at the yards next to the river bank, they scream fertilizer and harmful chemicals.